Key Takeaways from the Supreme Court’s Omar Shakir (HRW) Decision

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On November 5, 2019, the Israeli Supreme Court upheld a lower court ruling, rejecting the appeal of Human Rights Watch (HRW) “Israel and Palestine Country Director” Omar Shakir. Shakir and his employer asked the courts to overturn a decision of the Israeli Ministry of Interior not to renew Shakir’s work visa due to his BDS activities. The Supreme Court, like the district court, referenced NGO Monitor’s amicus brief.

The judges did not relate to the constitutionality of legislation that denies entry to major BDS activists. (The constitutionality of the law is being challenged in a separate case, Prof. Alon Harel v. the Knesset; a hearing in this case is scheduled for November 11, 2019.)

Nevertheless, the Supreme Court decision makes important contributions to the factual record regarding Shakir’s BDS activism and helps clarify the distinction between BDS and human rights advocacy.

Key takeaways from the Supreme Court decision:

• Like the lower court, the Supreme Court paints a clear picture of Shakir’s BDS activism, from when he founded a pro-BDS student group in 2006 through his present employment at HRW. During this time, he has been a consistent and ardent supporter of BDS (see NGO Monitor’s extensive material submitted in its filings and which was cited in the courts’ decisions). In the words of Justice Yael Wilner (in a short addendum to the main decision), “The statements [made by Omar Shakir and presented] above are definitely calls to boycott entities that operate in Israel and Judea and Samaria, only because of their connection to Israel or an area under its control — each one (statement) individually, all the more so when taken together. It seems to me that there cannot be a substantive argument about this.”
• Pro-BDS activists often use the rhetoric of “human rights” and “international law” to justify their discriminatory campaigns, but such rhetoric does not legitimize the boycotts. The Entry into Israel Law, Amendment 28 (2017) applies specifically to boycott calls that are based on a company’s connections to Israel or an area under its control, not to circumstances when the company in question has undertaken problematic activities.
• Even though the judges recognize there can be gray areas, Shakir’s activity unquestionably falls within the criteria of the law. Shakir rejects in total the presence of Israeli entities in the West Bank, and his calls for BDS are in opposition to their identity as Israelis, not because of any specific human rights violation.
• Contrary to claims from Shakir’s lawyers and Amnesty International (which joined the case in an amicus capacity), denying Shakir’s work visa will not adversely affect human rights NGOs that want to send representatives to Israel to criticize Israel’s policies. This is because Shakir’s involvement in BDS is so egregious.
• The Court firmly rejected a key argument from Shakir’s lawyers. They tried to argue that Shakir’s personal BDS activity ended upon his employment at HRW, at which point all his expressions should be attributed to HRW as an organization. Since HRW is not on the Israeli government’s list of “BDS organizations,” Shakir’s activity as an HRW employee should be granted “immunity” from the Entry into Israel Law. In sharp contradiction, the Court determined that he is responsible for his public statements, especially those on his private Twitter account.
• Shakir’s BDS is insufficient to trigger a listing of HRW as a “BDS organization” because HRW is a large international NGO with myriad activities having nothing to do with Israel. This is not a reflection on Shakir’s status as a BDS activist or HRW’s anti-Israel advocacy.